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Tag Archives: guardianship

Just about every new baby born in the U.S. – or at least almost every one whose “first pictures” I have seen in countless emails or Facebook postings – looks something like this. You see them in the ubiquitous, unisex blue and pink blanket and cap babies receive in the hospital. Over and over. That’s how you know it’s a newborn.

And then the differences emerge. Their eyes may be open or closed. They may be blonde, brunette, black-haired or bald. Boy or girl. Big or small. Whatever they are, God knows we love them.

I spoke with a friend this afternoon about preparing for her baby, due in June. They have the room ready. The crib is purchased. The curtains are pink. The baby registry is, well, registered. I wished her well, recalling that glowing gush of almost-mommyhood as if it were yesterday.

I also remember the first day I left my son with someone else, a family member. He was three weeks old, and I was gone for less than two hours. I was only about 1/2 block away from the apartment – we lived in NYC and walked everywhere at the time – and I dare near turned around and went back. How could I LEAVE him? The bond felt too strong, the break too fresh. Yet I knew that I needed to keep going forward. The job of a mother is to bring a child into the world and then little-by-little, day-by-day, prepare that child to be independent. We can’t keep them “in the womb,” as it were. As close as we feel to our babies, one day we have start the inevitable, growing separation. That’s a good deal of why they call being a parent the toughest job.

The same son I could barely leave that day is now nine years old. I leave him every day, or rather he leaves me (to get on the bus)…. He has been through two minor operations and countless aches, pains, bumps and sniffles. His younger sister, now six, is on a very special diet (as am I) due to celiac disease, which causes severe reactions after the most minuscule ingestion of gluten. We have become the gluten police. Yet, as the years have gone on, it has become exceedingly clear that I cannot protect my children from absolutely everything. Nor should I, lest they need protection themselves from a helicopter mom. The best I can do is intervene where I can and teach them to make their own way.

In my professional life, I think about these issues every day. As an estate planner, I have the same worries as every other parent and as many of my clients in their 30s and 40s with young children. What if I am not there to help them in life? What if the worst happens, the unthinkable, and their Dad and I don’t live long enough to see them through to adulthood? Back when I started college, my mother told me that for my entire childhood, she worried that she would live long enough to see me through high school. She was thankful to have been granted that wish. Years later but before I had children of my own, I said something about her joy that the worrying could subside at that point. “Are you kidding?” she answered. “Then I worried about living long enough to see you through college….” At some point, we parents can all stop worrying, but hopefully not for many years on.

Back to my friend, the one who’s expecting. A while into our conversation, I gently mentioned her that along with the bottles and blankets, she should consider which standby guardians to appoint for her soon-to-be-born child, in case the unthinkable happens. If she doesn’t plan ahead, and disaster does strike, the decision will be made by a court among a variety of contenders, not by her (and her husband’s) choice. It’s not a rush, hope against hope, but it is important.

We buy life insurance, car insurance, home or renter’s insurance and more. We have collectively come to realize that we won’t cause our home to catch fire by buying insurance. We are merely protecting ourselves and our families. We also need to look fate in the eye and realize that, even in our children’s early days, we need to prepare not only for that first day of separation, but also the last one.

Our children are our best presents in life and our sweetest Valentines. We gave them the gift of life, and we can also give them the gift of being prepared for what life may bring. After that, as I often tell my clients and friends, we can go back to enjoying them!

Because God knows we love them.

This post is one in an occasional series about the interplay of legal practice and everyday life. Anne Marie Segal is admitted to practice law in New York and Connecticut.

If you don’t have them already, and unfortunately many of us don’t, here are five essential legal documents to prepare you for 2013 and beyond. Do your family a favor and get these in place before they are ever needed.

1) Will. A “Last Will and Testament” is the central estate planning document that allows you to direct how your assets will be distributed upon your death and who will serve as your executor. If you have minor children, you can also designate guardians in a will. If you die without a will, the laws of your state determine how all of your property – from stocks to shoes – will be distributed. This may or may not accord with your intentions.

2) Advance Directives. A “living will” and a “health care proxy” are the two essential elements of an advance directive. The first gives your wishes for medical care in case of, for example, emergency and terminal illness. The second appoints an agent to make medical decisions if you are unable to do so. In some circumstances, a DNR is also appropriate.

3) Durable Power of Attorney. You will want to appoint someone you trust implicitly to be in charge of your finances in the event you are not able to do so (such as a prolonged recovery from an accident that leaves you mentally impaired). If not, valuable time will be wasted while your agent attempts access your assets, which may be needed for your or your family’s care. Depending on your personal circumstances, you may determine that a “springing” attorney is more appropriate, which is valid only if it is demonstrated that you are incapacitated.

4) Records of Passwords. Since bank statements and other important elements of our lives are often dependent on online passwords, you should have a secure system or file so that your personal representative can access these records if needed. The last thing you want is for assets to be left unclaimed (and escheated to the state) because no one knows where your accounts were held.

5) Temporary Guardianship Paperwork. If you have minor children, in addition to appointing a long-term guardian in your will, you want to have temporary guardians available to step in for emergencies and other situations where you may not be able to serve as guardian for your children, or upon your death in the first hours and days while the long-term guardian arrangements are put into place.

Just as you are jumping on the treadmill or passing up that second piece of chocolate cake to stay healthy for years to come, also take some time to prepare your estate plan. If you would like to watch my video 6 for 5: Six Minutes for Five Essential Legal Documents for 2013, see below.

Anne Marie Segal is admitted to practice law in Connecticut and New York and provides estate planning and other legal counsel to businesses and individuals. This information is provided for your convenience and does not comprise a complete estate plan or give legal advice for your situation. Other documents, such as a living trust, may be appropriate for your circumstances, depending on your state’s probate procedures, your asset base and other factors.

None of the interactions on this site form an attorney-client relationship. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

We try to protect our children from potential dangers – rain, sleet and snow to more ominous worries. What if the worst actually happened, and you were not there to care for your child? Who would do it? It’s a decision you want to plan calmly in advance, not leave to the courts – the judge won’t know that your charming sister-in-law is crazy – or even your own wits during or following a crisis situation.

Choosing a guardian can be difficult and filled with emotional and other nuances. In addition, differing opinions between spouses about who should serve as a guardian, in the unlikely event that both parents die while any of their children are under the age of 18, stops many an estate plan in its tracks. While no guardian will ever replace a child’s own parents, a thoughtful choice will help a child cope with his/her loss and readjust to a new life and home.

Factors in Choosing a Guardian

There are a number of factors that affect guardianship decisions, and the weight given to each depends on your personal situation and possible choices. Here are some common points to consider:

Other Parent. If the child’s other parent is still living, there is a “rebuttable presumption” that the parent will be the child’s guardian, absent extenuating circumstances such as abuse.

Willingness to Serve. Of upmost importance is the guardian’s willingness to take on such responsibility. Has or would the guardian agree to serve? Willingly or grudgingly?

Parenting Philosophy. Your choice of guardian should share your parenting philosophy. With what value set do you want your child raised? Can and will your potential guardian take your wishes into account?

Home Life. What type of home life does the potential guardian have right now and is it compatible with your children?

Geography. Where does the guardian live and (if applicable) will your children be able to adapt to a new geographical location? (Special issues, including immigration, are presented with international guardianship.)

Child’s Preferences. What are your child’s preferences, if any? Be aware that Connecticut courts give children a role in the process at age 12. In New York, that age is 14.

Religion and Spirituality. Choice of religion, religious observance or spirituality may be an important factor.

Special Needs. If a child has special needs (or severe allergies), will the guardian be able to address them in a loving way?

Health. Are there health issues to consider, either of your children, the guardian or the guardian’s own family?

Money Matters. Can the guardian manage the child’s inheritance or can you choose another individual or institution for money matters (e.g., a financial guardian or trustee)? If the latter, will the guardian be able to interact well your choice for financial management, and vice versa?

For More Information

If you are struggling to choose a guardian, feel free to email me at info@amscounsel.com to request a guardianship worksheet – either to jumpstart the conversation with your spouse or, if you are a single parent, to journal and consider your own potential choices.

Best of luck with your estate planning and other major financial and life decisions.

Anne Marie Segal is a lawyer and parent who has struggled with and made guardianship decisions for her own young children. She is admitted to practice law in Connecticut and New York.

Ms. Segal provides estate planning and other legal counsel to businesses and individuals at Law Office of Anne Marie Segal. Please visit her website at www.amscounsel.com for more information.

None of the information posted on this site constitutes legal advice or forms an attorney-client relationship. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

Tax Disclosure

Circular 230 Disclosure: Any income tax principles, rules, and outcomes discussed on this blog are intended to be used solely for general informational purposes. The information contained on this blog is not intended to be used, and cannot be used, for the purpose of avoiding federal tax penalties. Further, this blog is not intended to and cannot be relied upon by, or marketed to, others. Please contact me if a formal federal income tax opinion is desired with respect to the matters discussed herein.